The Criminal Procedure Rules 2015

Overseas restraint orders

49.12.—(1) This rule applies where—

(a) the Crown Court can give effect to an overseas restraint order under regulation 10 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014(1);

(b) the Director of Public Prosecutions or the Director of the Serious Fraud Office receives a request from a court or authority in another European Union member State to give effect to such an order; and

(c) the Director serves on the Crown Court officer—

(i) the certificate which accompanied the request for enforcement of the order,

(ii) a copy of the order restraining the property to which that certificate relates, and

(iii) a copy of an order confiscating the property in respect of which the restraint order was made, or an indication of when such a confiscation order is expected.

(2) On service of those documents on the court officer—

(a) the general rule is that the Crown Court must consider the order, with a view to its registration, no later than the next business day;

(b) exceptionally, the court may consider the order later than that, but not more than 5 business days after service.

(3) The court—

(a) must not consider the order unless the Director—

(i) is present, or

(ii) has had a reasonable opportunity to make representations;

(b) subject to that, may consider the order—

(i) at a hearing, which must be in private unless the court otherwise directs, or

(ii) without a hearing.

(4) If the court decides to give effect to the order, the court must—

(a) direct its registration as an order of the Crown Court; and

(b) give directions for notice of the order to be given to any person affected by it.

(5) Paragraph (6) applies where a person affected by the order, or the Director, wants the court to cancel the registration or vary the property to which the order applies.

(6) Such a person must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;

(b) serve the application on the court officer and, as applicable—

(i) the other party, and

(ii) any other person who will or may be affected;

(c) explain, as applicable—

(i) when the overseas restraint order ceased to have effect in the European Union member State in which it was made,

(ii) why continuing to give effect to that order would be impossible as a consequence of an immunity under the law of England and Wales,

(iii) why continuing to give effect to that order would be incompatible with a Convention right within the meaning of the Human Rights Act 1998,

(iv) why therefore it is appropriate for the registration to be cancelled or varied;

(d) include with the application any evidence in support;

(e) propose the terms of any variation; and

(f) ask for a hearing, if one is wanted, and explain why it is needed.

[Note. See regulations 8, 9 and 10 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

An overseas restraint order is an order made by a court or authority in a European Union member State which—

(a) relates to—

(i) criminal proceedings instituted in that state, or

(ii) a criminal investigation being carried on there; and

(b) prohibits dealing with property in England and Wales which the court or authority considers to be property that—

(i) has been or is likely to be used for the purposes of criminal conduct, or

(ii) is the proceeds of criminal conduct.

Where this rule applies, the Crown Court—

(a) may decide not to give effect to an overseas restraint order only if that would be—

(i) impossible as a consequence of an immunity under the law of England and Wales, or

(ii) incompatible with a Convention right within the meaning of the Human Rights Act 1998;

(b) may postpone giving effect to an overseas restraint order in respect of any property—

(i) in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or

(ii) if, under an order made by a court in criminal proceedings in the UK, the property may not be dealt with;

(c) may cancel a registration, or vary the property to which an order applies, if or to the extent that—

(i) any of the circumstances listed in paragraph (a) of this note applies, or

(ii) the order has ceased to have effect in the member State in which it was made.

Under regulation 10(6) of the 2014 Regulations, no challenge to the substantive reasons in relation to which an overseas restraint order has been made by an appropriate court or authority in a European Union member State may be considered by the court.

Under regulation 3 of the 2014 Regulations, a reference to the proceeds of criminal conduct includes a reference to—

(a) any property which wholly or partly, and directly or indirectly, represents the proceeds of an offence (including payments or other rewards in connection with the commission of an offence); and

(b) any property which is the equivalent to the full value or part of the value of such property.]

(1)

S.I. 2014/3141.